Products
Liability
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Additionally, a product may be defective in design.
When, because of the design, a product causes
injury, the manufacturer and others who distribute
the product may be responsible if (1) the product
failed to perform as safely as a reasonable consumer
would expect, or (2) the benefits of the design
chosen by the manufacturer are outweighed by the
risks inherent in the design.
For
example, Ford determined to locate the gas tank of
the Pinto behind the rear axle and adjacent to
bolts. When it did crash testing, Ford learned that
when the Pinto was struck from the rear, the gas
tank would be crushed and punctured causing fires.
Instead of relocating the gas tank, as Ford's own
engineers requested, which would have cost about
$1.50 per car, Ford went ahead and sold the Pinto
with this dangerous design. Many people
unnecessarily died in car fires and many others were
horribly injured. In
Grimshaw
v. Ford Motor Co., a case which one of our
firm's partners worked on, Ford was found liable for
burn injuries. |
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John Rowell inspecting
brake line failure area |
A product may also be defective for failure to warn that a
foreseeable use of the product can cause injury. For
example, the antiseptic Neonyacin was distributed without
warnings about use other than on a patient's skin. The
manufacturer, Upjohn, had conducted studies which showed
that using Neonyacin as an antiseptic to irrigate wounds
could cause destruction of the nerves in a patient's ear and
complete loss of hearing. Upjohn learned of cases of hearing
loss, but ignored the danger and lied to the government,
claiming there were little or no side effects from the drug.
One of the firm partners represented an air traffic
controller who lost his hearing and job as a result of the
use of Neonyacin to irrigate a wound.
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Click to Enlarge |
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Other recent examples of defective products include
SUVs such as the Explorer, which are prone to
rollover, tires, such as Firestone Steeltex AT,
which lose their tread and fail unexpectedly during
operation because of their design; drugs such as
Vioxx, which cause an increased risk of strokes and
heart attacks; and defective and/or aggressive air
bags, which put out a passenger's eye or break
necks. When products cause injury, such as in an
accident caused by a defective tire, this
specialized area of the law applies. This type of
claim requires a lawyer who is comfortable
cross-examining mechanics, engineers, pilots,
biomechanical experts, and medical doctors. Success
in this area is dependent on the lawyer's knowledge
of the special area of engineering involved and a
knowledge of other similar claims across the
country.
Attorneys at Cheong, Denove, Rowell & Bennett have
successfully prosecuted products liability cases for
almost 30 years. With respect to automobile-related
injuries, they have represented clients in claims of
defective tire design and manufacture, defective gas
tank placement and design, defectively weak roofs
and doors, defective seatbacks which collapse in
rear-end collisions, defective wheel design and
manufacture, defective design and manufacture of air
bag systems and seatbelts, and defective design and
manufacture of ignition modules and brakes. |
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The attorneys have prosecuted
claims of defective airplane design and manufacture
in connection with the Paris, Bali, San Diego,
Chicago and Tenerife air crash disasters. They have
represented clients in claims of defective
prosthetic devices, including prosthetic hips, knees
and heart valves. They have prosecuted claims of
defective design of surgical equipment and
cauterization devices. They have represented clients
in claims of defective drugs and lack of adequate
warnings, including Neonyacin, Vioxx, Phen-Fen, and
Baycol.
John D. Rowell, of Cheong,
Denove, Rowell & Bennett has served on state and
national plaintiffs committees in a number of
products liability cases.
The Defect Must Be a Cause of the Injury.
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Examining a
defective Firestone tire |
This
is incorrect. To establish liability the plaintiff needs to
prove not only a product defect, but the defect was a
substantial factor in causing the injury. The jury is
instructed that "a substantial factor in causing harm is a
factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or
trivial factor. It does not have to be the only cause of the
harm. Conduct is not a substantial factor in causing harm if
the same harm would have occurred without that conduct."
CACI 430
(CACI are the approved
jury instructions from the Judicial Council of California.
Jury instructions are read to the jury by the judge
and establish the law the jury must follow in deciding the
case. A partner of Cheong, Denove, Rowell & Bennett has been
formally recognized as one of the attorneys who assisted the
task force in the preparation of these jury instructions.)
Often
the manufacturer will often argue that the product was not
the cause of the plaintiffs injuries. Crash tests and
computer animation are often useful in demonstrating that
the defect was a cause of injury. An example of using a
crash test with computer animation appear on the boxes to
the right. Click on the images to see the
Mechanism of Injury Animation.
Who Can
Be Liable Under Products Liability?
Obviously,
the entity that manufactures the defective product can be
held liable. Once the product leaves the manufacturing
plant, other entities may also be held liable. These
entities include the distributor, and even the
retailer who sells the product to the consumer. Even if a
product is defective before it ever reaches the distributor
or retailer, they can be held liable for the defect. In
order for there to be liability, the injured person
must prove that the defendant either manufactured, produced,
distributed or sold the defective product.
What
Constitutes a Defect?
A
product which was not manufactured according to
specification
A
product which malfunctions
A
product which differs from the manufacturer's intended
result
A
product which fails to match the quality of similar products
A
product design which did not perform as safely as an
ordinary consumer would have expected it to perform
A
product that lacked sufficient instructions or failed to
warn of potential risks, side effects, or allergic reactions
Common
Defenses
Defendants in
products liability cases often raise the following defenses:
The
product was not defective
The
product was altered after it left the manufacturer,
distributor or retailer
The
product was misused
The
product was used in a way that was not reasonably
foreseeable by the defendant
The
product was not manufactured, distributed or sold by the
defendant
The
product performed as safely as an ordinary consumer would
have expected
The
product's design benefits outweighed the risks of the design
The
product's potential risks, side effects or allergic
reactions were not known or knowable through the use of
scientific knowledge
The
product's potential risks, side effects or allergic
reactions would have been recognized by an ordinary consumer
The
product's alleged defect was not a cause of the plaintiff's
injury or harm.
The
plaintiff was negligent in using the product and his
negligence was a cause of the injury or harm
Someone
other than the defendant was negligent and that person's
negligence was the cause of the injury or harm
The
product was tampered with after the accident
How Does the
Plaintiff Prove a Products Liability Case?
The simple
answer is "not easily." As with medical malpractice actions,
the defendant in a products liability action has the desire
and monetary resources to hire the most experienced
attorneys and expert witnesses to try to defeat the
plaintiff's claim.
The
plaintiff's attorney must be knowledgeable and experienced
in handling products liability cases or the plaintiff will
be fighting an uphill battle to begin with. The following is
just some of the work that must be done:
Identify
the manufacturer of not only the product, but its component
parts
Establish
facts to enable filing the action in a location or venue
most favorable to the plaintiff
Obtain
and secure the product
Choose
the correct experts to inspect the product
Ascertain
why the product failed
Discover
what made the product defective
Obtain,
read, and understand the relevant documents pertaining to
research, design, development and manufacture of the product
Anticipate
and defeat the potential defenses
Network
with other lawyers throughout the United States who may have
information concerning the product
Prepare for and depose the defendant's experts
Prepare
demonstrative exhibits to illustrate how the product was
defective and how the product caused the harm
Effectively
present the evidence to the jury
Have
the knowledge and ability to persuade the judge to exclude
improper defenses and evidence offered by the defense at
trial
Automobile
Products Liability Cases
Products come
in all shapes, sizes and uses. The following is a list of
some product defects in an automobile that can cause injury,
paralysis and death:
Design and manufacture of
passenger and light truck tires
Roof
crush resistance
Failed or bad body welds
Failure to use safety glass
Air bag deployment systems and air
bag sensor systems
Seat and seat back failures
Placement and construction of
seatbelts and seatbelt latches
Door latch mechanisms and
automatic door lock devices
Fuel pump systems
Design and placement of fuel tanks
Design and manufacture of fuel
tank filler necks
Lack of proper passenger
compartment padding
Parking/emergency brakes and
cabling
Service brake systems
Child restraints and child seats
Ignition modules
Cruise control components
Vehicle stability and ability to
safely perform foreseeable avoidance maneuvers.
Design and manufacture of
transmission systems including linkage and parking pawl
mechanisms
Recent
Cases
John Rowell and Bill
Karns obtained a favorable result in products liability case
involving a plastic liner used in hip prosthesis. They
alleged the design of the plastic liner was designed
defectively causing it to fracture.
Conclusion
Products
liability cases usually involve the most devastating
injuries. The injured person requires the services of an
attorney who is both knowledgeable and experienced in the
field of products liability.
The attorneys at Cheong,
Denove, & Bennett have authored numerous papers and have
lectured to other lawyers on products liability.
Cheong,
Denove, Rowell & Bennett
has the extensive resources to handle the most complex legal
matters, yet is small enough to offer individualized service
to our clients.
At Cheong,
Denove, Rowell & Bennett we believe the more you know, the
better choice you will make.
Contact Us
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